ACIT-CC-11, V. SIMONI GEMS, MUMBAI

MA 240/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6984 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: misc
• Appeal Filed On: 07-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Invalid notice; Search and seizure; Principle of natural justice; Validity of assessment; Procedural lapse; Assessment record; Block assessment
• Section: 143(3); 145; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G,MUMBAI BEFORE SHRI J. SUDHAKAR REDDY (AM) & SHRI R.S. PAD VEKAR (JM) M.A. NO. 240/MUM/2010 [ARISING OUT OF I.T.(SS) NO.747/MUM/2003] (BLOCK PERIOD: 1-4-1990 TO 17-1-2000) THE COMMR. OF INCOME-TAX (DR)-XII, ITAT, C-BENCH, 708, 7 TH FLOOR, M.K. ROAD, MUMBAI-400 020. VS. M/S. SIMONI GEMS, 36, SHREEJI ARCADE, OPP. PRASAD CHAMBERS, 1 & 2, TATA ROAD, OPERA HOUSE, MUMBAI-400 004. APPLICANT RESPONDENT APPLICANT BY SHRI VIRENDRA OJHA / SHRI D. SONGATE / SHRI SHANTAM BOSE DEPARTMEMT BY SHRI P. J. PARDIWALA / SHRI NITESH DOSHI / MS. INDIRA ANAND DATE OF HEARING: 26.8.2011 DATE OF ORDER: O R D E R PER J. SUDHAKAR REDDY, AM: THE CIRCUMSTANCES UNDER WHICH THE PRESENT M.A. ARIS ES FOR CONSIDERATION BY THE TRIBUNAL ARE AS FOLLOWS: 2. THE ASSESSEE IS A PARTNERSHIP FIRM. IT IS ENGA GED IN THE BUSINESS OF TRADING OF DIAMONDS. THE ASSESSEE IS ALSO ENGAGED IN EXPORT OF DIAMONDS. THERE WAS A SEARCH AND SEIZURE OPERATION CONDUCTED U/S.132 OF THE INCOME TAX ACT, 1961 (THE ACT) ON 17.1.2000 IN THE CASE OF THE ASSESSEE. A NOTICE DATED 14.6.2000 WAS ISSUED BY THE AO UNDER THE PROV ISIONS OF SEC.158BC OF THE ACT, CALLING UPON THE ASSESSEE TO FILE RETURN O F INCOME FOR THE BLOCK PERIOD. ON 19.7.2000, THE ASSESSEE FILED A RETURN OF INCOME FOR THE BLOCK PERIOD DECLARING UNDISCLOSED INCOME FOR THE BLOCK P ERIOD OF RS.15,00,000. THE ASSESSEE ALSO TOOK A STAND THAT THE INCOME DECL ARED IN THE RETURN OF INCOME FOR THE BLOCK PERIOD WAS ELIGIBLE FOR DEDUCT ION U/S.80HHC OF THE ACT. ACCORDING TO THE ORDER OF ASSESSMENT A NOTICE U/S.1 43(2)/142(1) OF THE ACT MA NO.240/MUM/10 2 WAS ISSUED ON 15.10.2000. THE CORRECT DATE OF ISSU E OF NOTICE U/S.143(2) OF THE ACT ACCORDING TO THE ASSSESSEE WAS 15.10.2001 A ND THERE WAS A TYPOGRAPHICAL ERROR IN MENTIONING THE SAID DATE IN THE ORDER OF ASSESSMENT AS 15.10.2000. BY AN ORDER DATED 31.1.2002, THE AO PA SSED AN ORDER OF ASSESSMENT U/S.158BC OF THE ACT, DETERMINING THE UN DISCLOSED INCOME OF THE ASSESSEE FOR THE BLOCK PERIOD AT RS.4,71,57,325/. 3. AGAINST THE SAID ORDER THE ASSESSEE PREFERRED A PPEAL BEFORE CIT(A). BEFORE CIT(A), THE ASSESSEE RAISED A GROUND CHALLENGING TH E VALIDITY OF THE ORDER OF ASSESSMENT ON THE GROUND THAT THE NOTICE U/S.143(2) WAS ISSUED BEYOND THE PERIOD OF ONE YEAR FROM THE END OF THE MONTH IN WHI CH THE RETURN OF INCOME WAS FILED BY THE ASSESSEE AND THEREFORE THE ORDER A SSESSMENT SHOULD BE HELD TO BE INVALID. THE CIT(A), HELD THAT THE SAID OBJE CTION WAS NOT RAISED BEFORE AO AND THE ASSESSEE PARTICIPATED IN THE PROCEEDINGS BEFORE AO, THEREFORE THE GROUND CANNOT BE RAISED BEFORE THE CIT(A) IRRESPECT IVE OF THE MERITS OF SUCH CONTENTION. ON MERITS THE ASSESSEES APPEAL WAS PA RTLY ALLOWED. AGAINST THE RELIEF ALLOWED BY THE CIT(A), THE REVENUE HAD PREFE RRED APPEAL BEING IT (SS) NO.747/MUM/2003 BEFORE THE TRIBUNAL. 4. UNDER 27 OF THE INCOME TAX APPELLATE TRIBUNAL R ULES, 1963 (TRIBUNAL RULES), AS A RESPONDENT IN THE APPEAL, THE ASSESS EE IS ENTITLED TO SUPPORT ORDER OF CIT(A) ON ANY GROUNDS DECIDED AGAINST HIM, THOUGH HE MAY NOT HAVE APPEALED. IN THE APPEAL FILED BY THE REVENUE, THE ASSESSEE IN TERMS OF RULE 27 OF THE TRIBUNAL RULES, RAISED A PLEA CHALLENGING THE VALIDITY OF THE ORDER OF ASSESSMENT ON THE GROUND THAT THE NOTICE U/S.143(2) WAS ISSUED BEYOND THE PERIOD OF ONE YEAR FROM THE END OF THE MONTH IN WHI CH THE RETURN OF INCOME WAS FILED BY THE ASSESSEE AND THEREFORE THE ORDER A SSESSMENT SHOULD BE HELD TO BE VOID AND ANNULLED. SIMILAR PLEA, AS WE HAVE SEEN IN THE EARLIER PARAGRAPH HAD BEEN RAISED BY THE ASSESSEE BEFORE CI T(A) AND DECIDED AGAINST THE ASSESSEE BY THE CIT(A) AND THEREFORE THE ASSESS EE WAS ENTITLED TO RAISE THIS PLEA BEFORE THE TRIBUNAL WITHOUT FILING ANY AP PEAL. WHEN THIS PLEA WAS RAISED BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE QUESTION WHETHER THE DATE OF NOTICE U/S.143(2)/142(1) OF THE ACT MENTIONED AS 15.10.2000 IN THE ORDER OF ASSESSMENT IS CORRECT OR NOT CAME UP FOR CONSIDE RATION. AS ALREADY MA NO.240/MUM/10 3 MENTIONED, THE CORRECT DATE OF ISSUE OF NOTICE U/S. 143(2) OF THE ACT ACCORDING TO THE ASSSESSEE WAS 15.10.2001 AND THERE WAS A TYP OGRAPHICAL ERROR IN MENTIONING THE SAID DATE IN THE ORDER OF ASSESSMENT AS 15.10.2000. 5. THE TRIBUNAL GAVE ITS FINDING ON THE ABOVE ISS UE IN PARA 8 TO 12 OF ITS ORDER DATED 23 RD MARCH, 2010 AND CAME TO THE CONCLUSION, BASED ON T HE ADMISSION OF THE CONCERNED ASSESSING OFFICER IN A L ETTER, THAT THE CORRECT DATE OF ISSUE OF NOTICE U/S.143(2) OF THE ACT WAS 15.10. 2001 AND THERE WAS A TYPOGRAPHICAL ERROR IN MENTIONING THE SAID DATE IN THE ORDER OF ASSESSMENT AS 15.10.2000. THE RELEVANT FINDINGS OF THE TRIBUNAL W ERE AS FOLLOWS: 8. THE LETTER DATED 18/5/2009 WRITTEN BY CIT, DR T O THE ACIT, CEN.CIR.11 READS AS UNDER:- NO.CIT(DR)/ITAT/G-BENCH/2009-10 DATE:18TH MAY, 2 009 TO THE ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 11, MUMBAI. SUB:-DEPARTMENTAL APPEAL IN THE CASE OF M/S. SIMONI GEMS VIDE ITA NO.IT(SS) 747/M/03 REG. ****** PLEASE REFER TO THE ABOVE. THE ABOVE CASE HAS BEEN ADJOURNED NUMBER OF TIMES A ND THE CASE HAS BEEN FIXED FOR LAST HEARING ON 29/06/2009. THE COUNSEL OF THE APPELLANT PUT FORWARD A NEW PLEA THAT NOTICE U/S. 1 43(2) HAS BEEN ISSUED BEYOND ONE YEAR I.E. ON 15/10/2001 AND THERE FORE THE ASSESSMENT IS TIME BARRED . ON GOING THROUGH THE AS SESSMENT ORDER I FIND THAT A NOTICE IS STATED TO BE ISSUED ON 15/10/ 2000. PLEASE VERIFY THE RECORDS AND SEND ME A XEROX COPY OF THE NOTICE ALONGWITH ORDER SHEET NOTINGS TO THE UNDERSIGNED WITHIN 10 DAYS FRO M THE RECEIPT OF THIS LETTER. AS THE DEPARTMENT HAS GOT A VERY GOOD CASE IN THIS APPEAL. TAKE THE MATTER SERIOUSLY AND REPLY THE SAME IN ADVANCE. YOURS FAITHFULLY SD/- (P.S. CHELLAPHAN) CIT (DR), ITAT IV, G-BENCH, MUMBAI COPY : THE CIT (CENTRA)-I, MUMBAI CIT (DR), ITAT IV, G-BENCH, MUMBAI MA NO.240/MUM/10 4 9. LETTER DATED 25/6/09 WRITTEN BY ACIT, CEN.CIR.11 , MUMBAI TO CIT, DR, ITAT G BENCH READS AS UNDER:- NO.ACIT/CC-11/SIMONI GEMS/2009-10 DATED 25/06/200 9 TO, COMMISSIONER OF INCOME-TAX (DR) ITAT G BENCH MUMBAI. SIR, SUB: DEPARTMENTAL APPEAL IN THE CASE OF M/S. SIMON Y GEMS VIDE ITA NO.IT(SS)747/M/03-REG. REF:- YOUR OFFICE LETTER NO. CIT(DR)/ITAT/G-BENCH/2 009-10 DATED:18 TH MAY, 2009 ****** KINDLY REFER TO THE ABOVE. THE CASE RECORDS OF ABOVE ASSESSEE FOR BLOCK ASSESS MENT REVEALS THAT THE ASSESSEE HAD FILED RETURN FOR BLOCK PERIOD ON 19/7/2000 IN RESPONSE OF NOTICE U/S. 158 OF I.T. ACT. AFTER THAT THE CASE WAS TRANSFERRED TO THIS CHARGE FROM SPL.RANGE48 ON 12/ 10/2001 . THE NOTICE U/S. 143(2) WAS ISSUED ONLY ON 15/10/2001. T HE COPY OF THE NOTICE U/S. 143(2) IS ENCLOSED HEREWITH. SUBMITTED PLEASE. YOURS FAITHFULLY (VINOD KUMAR) ACIT, CENTRAL CIR.11, MUMBAI COPY TO:- THE COMMISSIONER OF INCOME-TAX, CENTRAL-I, MUMBAI ACIT, CENTRAL CIR.11, MUMBAI. 10. FROM THE PAPERS ON RECORD WE FIND THAT ON 17/8/ 2009 THE CIT(DR) ITAT II, G BENCH MR. PRAGATI KUMAR HAS AD DRESSED A LETTER TO CIT(CENTRAL) I, WHICH READS AS UNDER:- NO.CIT(DR)/ITAT/G-BENCH/2009-10 DATED 17/08/2009 TO THE CIT (CENTRAL)-I, MUMBAI. SIR, MA NO.240/MUM/10 5 SUB:- DEPARTMENTAL APPEAL IN CASE OF M/S. SIMONI G EMS ITA NO. IT(SS)747/M/03 HEARING FIXED FOR 18/8/2009. IT IS A VERY GOOD CASE OF THE DEPARTMENT. THE APPEL LANT HAD DISCLOSED ONLY RS.15.00 LAKHS UNDER THE BLOCK RETUR N FILED BY IT, WHEREAS THE AO ASSESSED U/S. 158 BC(C) THE UNDISCLOSED INCO ME AT RS. 4.71 CRORES. THE ASSESSEES COUNSEL HAS TAKEN A PLEA BEFORE THE BENCH THAT SINCE THE NOTICE U/S. 143(2) WAS ISSUED ONLY ON 15/ 10/2001 I.E. AFTER THE LAPSE OF MORE THAN ONE YEAR FROM THE DATE OF FI LING OF BLOCK RETURN ON 19/07/2000, THE ENTIRE BLOCK ASSESSMENT ORDER IS TI ME BARRED, AS HELD BY HIGH COURTS. A REPORT WAS CALLED FOR FROM THE AO BY MY PREDECESS OR IN THIS CONNECTION. THE AO HAS REPORTED THAT THE NOTIC E U/S. 143(2) WAS ISSUED BY HIM ONLY ON 15/10/2001. HE HAS NOT MENTIONED WHETHER BEFORE THE TRANSFER OF THE CASE RECORDS TO HIM, HIS PREDECESSOR AO I.E. JCIT SPL.RANGE 48, HAS ISSUED ANY NOTICE U/S. 143(2) OR NOT/ HE HAS ALSO NOT ENCLOSED THE COPY OF THE COMPLETE O RDER SHEET NOTINGS, ALTHOUGH ASKED TO DO SO BY MY PREDECESSOR CIT(DR). THIS REPORT OF AO IS IN SHARP CONTRAST TO HIS RECORDING ON THE ASSESSMEN T ORDER AT PAGE NO.2 PARA NO.5 THAT NOTICES U/S. 143(2)/142(1) DATED 15/ 10/2000 HAVE BEEN ISSUED AND SERVED. IF THE ACTUAL DATE OF NOTICE IS 15/10/2000 THE DEPA RTMENTS CASE SURVIVES. IF THE ACTUAL DATE IS 15/10/2001, THE DEPARTMENTS CASE WILL MOST LIKELY BE DISMISSED ON LIMITATION MATTER ALONE. YOU ARE THEREFORE REQUESTED TO LOOK INTO THIS MATTE R URGENTLY, AND DIRECT THE AO TO SEND THE XEROX COPIES OF THE ENTIR E ORDER SHEET NOTHINGS OR PREFERABLY THE ENTIRE ASSESSMENT FOLDER. THIS MAY BE TREATED AS THE MOST URGENT MATTER AS TH IS CASE, AS A LAST CHANCE, HAS BEEN FIXED FOR HEARING TOMORROW IT SELF AND THEREFORE THE REPLY/RECORDS ARE NEEDED HERE TODAY ONLY. ENCL: AS ABOVE. YOURS FAITHFULLY SD/- (PRAGATI KUMAR) CIT DR ITAT-II G BENCH COPY TO: 1. THE ACIT CENTRAL CIRCLE 11, MUMBAI FOR INFORMATI ON AND IMMEDIATE ACTION. 2. THE CCIT VI, MUMBAI FOR INFORMATION. MA NO.240/MUM/10 6 11. ON 18/8/09 THE TRIBUNAL HAS DIRECTED THE LD. D. R TO PRODUCE THE ASSESSMENT RECORDS FOR VERIFYING THE DATE OF ISSUE OF NOTICE UNDER SECTION 143(2). TILL DATE THIS HAS NOT BEEN COMPLIED WITH. 12. ON THIS FACTUAL MATRIX AND IN VIEW OF THE LETTE R WRITTEN BY ACIT, CENTRAL CIRCLE 11, MUMBAI TO THE CIT(DR) ITAT G B ENCH MUMBAI DATED 25/6/09, WE HOLD THAT NOTICE UNDER SECTION 143(2) W AS ISSUED ONLY ON 15/10/2001 AND NOT ON 15/10/2000 AND THE DATE A PAR A 5 OF PAGE -2 OF THE ASSESSMENT ORDER IS A TYPOGRAPHICAL MISTAKE. 6. THE HONBLE SUPREME COURT IN THE CASE OF ASSIST ANT COMMISSIONER OF INCOME-TAX V. HOTEL BLUE MOON 321 ITR 362 (SC), ON THE ISSUE OF SERVICE OF NOTICE U/S.143(2) OF THE ACT IN AN ASSESSMENT FOR T HE BLOCK PERIOD U/S.158BC OF THE ACT HAD HELD THAT IF THE ASSESSING OFFICER, FOR ANY REASON, REPUDIATES THE RETURN FILED BY AN ASSESSEE IN RESPO NSE TO NOTICE UNDER SECTION 158BC(A) OF THE INCOME-TAX ACT, 1961 RELATI NG TO A BLOCK ASSESSMENT, THE ASSESSING OFFICER MUST NECESSARILY ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN THE TIME PRESCRIBED IN THE PROVISO T O SECTION 143(2). IT WAS FURTHER HELD THAT BY MAKING THE ISSUE OF NOTICE MAN DATORY, SECTION 158BC, DEALING WITH BLOCK ASSESSMENTS, MAKES SUCH NOTICE T HE VERY FOUNDATION FOR JURISDICTION. SUCH NOTICE IS REQUIRED TO BE SERVED ON THE PERSON WHO IS FOUND TO HAVE UNDISCLOSED INCOME. SECTION 158BC PROVIDES FOR ENQUIRY AND ASSESSMENT. AFTER THE RETURN IS FILED, CLAUSE (B) O F SECTION 158BC PROVIDES THAT THE ASSESSING OFFICER SHALL PROCEED TO DETERMI NE THE UNDISCLOSED INCOME OF THE BLOCK PERIOD IN THE MANNER LAID DOWN IN SECT ION 158BB AND 'THE PROVISIONS OF SECTION 142, SUB-SECTIONS (2) AND (3) OF SECTION 143, SECTION 144 AND SECTION 145 SHALL, SO FAR AS MAY BE, APPLY'. TH IS INDICATES THAT THIS CLAUSE ENABLES THE ASSESSING OFFICER, AFTER THE RET URN IS FILED, TO COMPLETE THE ASSESSMENT UNDER SECTION 143(2) BY FOLLOWING THE PR OCEDURE LIKE ISSUE OF NOTICE UNDER SECTION 143(2) /142. THIS DOES NOT PRO VIDE ACCEPTING THE RETURN AS PROVIDED UNDER SECTION 143(1)(A) : THE OFFICER H AS TO COMPLETE THE ASSESSMENT UNDER SECTION 143(3) ONLY. IF AN ASSESSM ENT IS TO BE COMPLETED UNDER SECTION 143(3) READ WITH SECTION 158BC, NOTIC E UNDER SECTION 143(2) SHOULD BE ISSUED WITHIN ONE YEAR FROM THE DATE OF F ILING OF THE BLOCK RETURN. OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER SECTION 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND IS N OT CURABLE. THEREFORE, THE MA NO.240/MUM/10 7 REQUIREMENT OF NOTICE UNDER SECTION 143(2), WITHIN THE PRESCRIBED PERIOD CANNOT BE DISPENSED WITH. 7. IN VIEW OF THE AFORESAID RULING OF THE HONBLE SUPREME COURT, THE TRIBUNAL DISMISSED THE APPEAL OF THE REVENUE, WITHOUT GOING INTO ANY OTHER ISSUES RAISED BY THE REVENUE IN ITS APPEAL. THE RESULT OF SUCH DISMISSAL OF THE REVENUES APPEAL WAS THAT THE ORDER OF THE AO AS MO DIFIED BY THE ORDER OF CIT(A) WOULD STILL HOLD GOOD AND THE ORDER OF ASSES SMENT WAS NOT ANNULLED BY THE TRIBUNAL. IN OTHER WORDS THE PLEA RAISED BY TH E ASSESSEE AS A RESPONDENT WAS CONSIDERED ONLY TO THE EXTENT OF SUSTAINING THE CIT(A)S ORDER AS REQUIRED BY RULE 27 OF THE TRIBUNAL RULES. 8. THE HEARING CONCLUDED ON 2/3/2010. THE ORDER O F THE TRIBUNAL WAS PRONOUNCED ON 23.3.2010 IN OPEN COURT. THE NOTICE GIVING THE DATE OF PRONOUNCEMENT OF THE ORDER WAS DULY DISPLAYED IN TH E NOTICE BOARD OF THE TRIBUNAL, AS IS THE PRACTICE FOLLOWED BY THE TRIBUN AL. 9. THE DEPARTMENTAL REPRESENTATIVE (CIT) , ITAT, C -BENCH, MUMBAI, SHRI AJIT KUMAR SINHA, VIDE LETTER DATED 24-03-2010 AND ANOTHER LETTER DATED 25- 03-2010, WHICH IS IN CONTINUATION OF THE LETTER DAT ED 24 TH MARCH 2010, PRAYED FOR RECALLING OF THE ORDER DATED 23-03-2010 AND THAT THE APPEAL SHOULD BE ADJUDICATED AFRESH AFTER CONSIDERING THE WRITTEN SUBMISSIONS OF THE DEPARTMENT. THE ABOVE LETTERS WERE ADDRESSED TO TH E HONBLE MEMBERS WHO HEARD THE APPEAL. THE SAME WAS RECEIVED BY, BOTH I NWARD TAPAL AS WELL AS BY REGISTERED POST. IN VIEW OF THE ALLEGATIONS MAD E IN THOSE LETTERS AND IN VIEW OF THE SPECIFIC SUBMISSION TO RECALL AND ADJUD ICATE THE APPEAL AFRESH, THOSE LETTERS WERE DIRECTED TO BE NUMBERED AS M.A. THE HONBLE KERALA HIGH COURT IN THE CASE OF CIT VS. INCOME-TAX APPELLATE T RIBUNAL 289 ITR 191 (KER) HAS HELD THAT NO SPECIFIC FORM OF APPLICATION IS SP ECIFIED U/S.254(2) OF THE ACT AND THEREFORE THE POWER U/S.254(2) OF THE ACT CAN B E EXERCISED EVEN ON A DEFECTIVE APPLICATION. IT WAS FURTHER HELD THAT THE LEARNED DEPARTMENTAL REPRESENTATIVE CAN MOVE AN APPLICATION UNDER SECTIO N 254(2) AND THAT SUCH AN APPLICATION IS VALID. HENCE, THE REGISTRY WAS DI RECTED TO REGISTER THE LETTERS REFERRED TO ABOVE, AS MISCELLANEOUS APPLICATION U/S .254(2) OF THE ACT AND POST THE SAME FOR HEARING. THE APPLICATIONS WERE AC CORDING REGISTERED AND MA NO.240/MUM/10 8 POSTED FOR HEARING BY THE REGISTRY. THE COPIES OF T HESE LETTERS ARE ANNEXED AS ANNEXURE-1 AND 2 TO THIS ORDER. ALONG WITH THE LET TER DATED 24.3.2010, THE D.R. HAS ALSO SENT WRITTEN SUBMISSIONS DATED 19.3.2 010, WHICH IS ANNEXED AS ANNEXURE 3 TO THIS ORDER. 10. THE GIST OF THE LETTER DATED 24.3.2010 IS THA T A) IN THE APPEAL BY THE REVENUE, THE TRIBUNAL HAD ALLO WED THE ASSESSEE TO SPEAK FIRST AND RAISE A NEW ISSUE REGARDING CHALLEN GE TO THE VALIDITY OF THE ORDER OF ASSESSMENT ON THE GROUND THAT THE NOTI CE U/S.143(2) WAS ISSUED BEYOND THE PERIOD OF ONE YEAR FROM THE END O F THE MONTH IN WHICH THE RETURN OF INCOME WAS FILED BY THE ASSESSE E. B) IN SUPPORT OF THE SUBMISSION ON BEHALF OF THE ASSES SEE, TWO DECISIONS OF THE HONBLE BOMBAY HIGH COURT WERE CITED BUT COP IES OF THOSE JUDGMENTS WERE NOT FURNISHED TO THE DEPARTMENTAL RE PRESENTATIVE. C) THE DEPARTMENTAL REPRESENTATIVE HAD SUBMITTED BEFOR E THE TRIBUNAL AT THE TIME OF HEARING OF THE APPEAL THAT SINCE THE AS SSESSEE HAS RAISED A NEW ISSUE VERBALLY, THE ASSESSEE SHOULD FURNISH WRI TTEN SUBMISSION WITH RELEVANT CASE LAWS CITED BEFORE THE BENCH SO T HAT THE DEPARTMENTAL REPRESENTATIVE CAN GIVE HIS COMMENTS O N THE SAME. D) ON SUCH SUBMISSION, THE BENCH DIRECTED THE PARTIES TO FILE WRITTEN SUBMISSIONS AND TREATED THE CASE AS HEARD. E) THE DEPARTMENTAL REPRESENTATIVE COULD FILE HIS WRIT TEN SUBMISSIONS ONLY IF THE ASSESSEE FILES HIS WRITTEN SUBMISSIONS. THE ASSESSEES WRITTEN SUBMISSION DATED 4.3.2010 WAS GIVEN TO THE D.R. ONLY ON 9.3.2010. F) ON 23.3.2010, THE DEPARTMENTAL REPRESENTATIVE SOUGH T TO FILE WRITTEN SUBMISSIONS ON THE NEW ISSUE RAISED BY THE ASSESSEE AS WELL AS ON MERITS OF THE APPEAL BUT THE SAME WAS NOT ACCEPTED BY THE BENCH CLERK. THEREUPON, THE DEPARTMENTAL REPRESENTATIVE MET THE HONBLE PRESIDING OFFICER OF THE BENCH WHICH HEARD THE MATT ER IN CHAMBERS AND REQUESTED HIM TO TAKE THE WRITTEN SUBMISSIONS O N RECORD. THE DEPARTMENTAL REPRESENTATIVE CAME TO KNOW THAT THE O RDER HAS ALREADY BEEN PRONOUNCED AND THEREFORE THE WRITTEN SUBMISSIO N OF THE D.R. COULD NOT BE TAKEN ON RECORD. 11. THEREAFTER THE LETTER CONTAINS THE FOLLOWING A LLEGATIONS AGAINST THE MEMBERS: A) THE BENCH HAS PASSED THE ORDER IN UNDUE HURRY. MA NO.240/MUM/10 9 B) THE ORDER OF THE TRIBUNAL WITHOUT CONSIDERING THE S UBMISSIONS OF THE DEPARTMENT IS UNJUSTIFIED. C) ON 2.3.2010, THE BENCH DID NOT FIX ANY TIME LIMIT W ITHIN WHICH THE WRITTEN SUBMISISONS WERE TO BE FILED BY THE DEPARTM ENT. THE BENCH SHOULD HAVE THEREFORE WAITED FOR THE WRITTEN SUBMIS SIONS OF THE DEPARTMENT. 12. THEREAFTER IT HAS BEEN STATED IN THE LETTER TH AT THE D.R. IS CONSTRAINED TO SEND THE LETTER BY POST AS THE SAME WAS NOT ACCEPTE D BY THE BENCH CLERK. THE BENCH SHOULD CONSIDER THE WRITTEN SUBMISSIONS O F THE DEPARTMENT BEFORE PASSING THE ORDER AND IF THE ORDER HAD ALREA DY BEEN PASSED THEN THE SAME SHOULD BE RECALLED AND THE MATTER READJUDICATE D. 13. THE CONTENTS OF THE LETTER DATED 25.3.2010 ARE ALMOST IDENTICAL WITH ADDITIONAL REFERENCES TO THE MERITS OF THE CASE OF THE REVENUE. THE ALLEGATIONS IN THIS LETTER ARE THAT A) THE ORDER OF THE TRIBUNAL IS AN EX-PARTE ORDER. B) THE TRIBUNAL IN ALLOWING THE ASSESSEE/RESPONDENT TO SPEAK FIRST IN THE APPEAL FILED BY THE REVENUE AND RAISE A NEW ISSUE A ND BY DOING SO HAS ACTED AGAINST THE NORMS IN APPELLATE PROCEEDINGS. C) THE TRIBUNAL HAS ACTED AGAINST NATURAL JUSTICE AND AGAINST LEGAL PRECEDENTS EVER HEARD-OF. D) THE TRIBUNAL CANNOT AND SHOULD NOT PASS EX-PARTE JU DGMENT. 14. THE COUNSEL FOR THE ASSESSEE SUBMITTED AS FOLLO WS : A) THE SUBMISSION/LETTERS ADDRESSED BY THE CIT(DR) TO THE HONBLE BENCH CANNOT BE REGARDED AS A MISCELLANEOUS APPLICA TION FOR RECTIFICATION OF A MISTAKE APPARENT FROM HE RECORD AS CONTEMPLATED UNDER SECTION 254(2) OF THE ACT, AS NO MISTAKE HAS BEEN POINTED OUT IN THE SAID SUBMISSION/LETTERS WHICH COULD BE REGAR DED AS APPARENT FROM THE RECORD; B) THE ASSESSEE HAD RAISED ISSUE OF NON-SERVICE OF NO TICE U/S.143(2) OF THE ACT WITHIN THE PRESCRIBED TIME IN APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) WHO HAD DISMISSED THE GROUN D STATING THAT THIS ISSUE COULD NOT BE RAISED BEFORE HIM AS IT HAD NOT BEEN RAISED BEFORE THE AO IN THE COURSE OF ASSESSMENT PROCEEDIN GS. FURTHER, BEFORE THE TRIBUNAL THIS ISSUE WAS RAISED BY THE AS SESSEE IN THE COURSE OF THE HEARING ON 12.05.2009, 29.06.2009, 18 .8.2009 AND MA NO.240/MUM/10 10 20.10.2009 I.E. ON 4 OCCASIONS BEFORE THE DATE OF F INAL HEARING ON 02.03.2010. ON THOSE OCCASIONS THE HEARING WAS ADJO URNED FOR THE REVENUE TO OBTAIN APPROPRIATE INSTRUCTIONS FROM THE AO AS TO THE DATE OF SERVICE OF THE NOTICE UNDER SECTION 143(2). C) THE CIT (DR) HAS CLAIMED THAT THE DATE OF 15.10.200 0 AS THE DATE OF ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT BY REFERRING TO PARA 5 ON PAGE 3 OF THE ASSESSMENT ORDER. THE DATED 15.10. 2000 MENTIONED AS DATE OF SERVICE OF NOTICE U/S.143(2) O F THE ACT IN THE ORDER OF ASSESSMENT IS CLEARLY A CASE OF TYPOGRAPHI CAL ERROR AND THE ACTUAL DATE OF ISSUE OF SAID NOTICE IS 15.10.2001. IN THIS REGARD THE ASSESSEES COUNSEL HAD PRODUCED THE ORIGINAL NOTICE BEFORE THE TRIBUNAL IN THE COURSE OF HEARING. THIS FACT HAS AL SO BEEN CONFIRMED BY THE AO BY HIS LETTER DATED 25.06.2009 ADDRESSED TO THE CIT(DR) REPRODUCED IN PARA 9 AT PAGE 4 OF THE TRIBUNALS OR DER. IT WAS ALSO POINTED OUT THAT APART FROM ALLEGING THAT THIS ISSU E WAS RAISED BY THE ASSESSEE IN APPEAL AND AT LATER STAGE, THE CIT(DR) IN HIS SUBMISSION DATED 19.03.10 HAS ALSO NOT BEEN ABLE TO POSITIVELY SHOW THAT ANY NOTICE HAD BEEN ISSUED BY THE AO UNDER SECTION 143( 2) BEFORE 31.07.2001. D) THE PLEA OF THE D.R. THAT COPIES OF THE TWO DECISI ONS OF THE BOMBAY HIGH COURT IN B.R. BAMASI V. CIT 83 ITR 223 AND CIT V. GILBERT AND BARKER MANUFACTURING CO., USA 111 ITR 529 WERE NOT HANDED OVER BY THE ASSESSEES COUNSEL TO HIM CANNOT BE CONSIDER ED AS A GENUINE GRIEVANCE. DECISIONS REFERRED TO IN THE COURSE OF HEARING ARE REPRODUCED IN INCOME TAX REPORTS AND IT IS NOT A RU LE THAT PHOTOCOPIES OF THE REPORTED DECISIONS RELIED UPON B Y A PARTY NEED TO BE FILED BEFORE THE BENCH AND A COPY ALSO HANDED OV ER TO THE OTHER SIDE AND, HENCE, THIS GRIEVANCE HAS NO BASIS IN LAW . E) WITH REGARD TO THE PLEA OF THE D.R. THAT THE WRITTE N SUBMISSIONS FILED BY THE ASSESSEE ON 04.03.2010 WERE RECEIVED BY HIM FROM HIS OFFICE ON 09.03.2010, THEREBY JUSTIFYING HIS ACTION OF F ILING HIS WRITTEN SUBMISSIONS ONLY ON 23.03.2010, IT WAS SUBMITTED TH AT THE REQUIREMENT OF FILING WRITTEN SUBMISSIONS BY THE RE VENUE WAS NOT SUBJECT TO THE FILING OF SUCH SUBMISSIONS BY THE AS SESSEE AS IS SOUGHT TO BE MADE OUT BY THE DR IN HIS LETTERS. IN FACT, T HE ASSESSEE HAD FULLY ARGUED ITS CASE IN THE COURSE OF HEARING ON 0 2.03.2010. THERE WAS NOTHING IN THE ARGUMENTS WHICH REQUIRED ANY EXP LANATION BY WAY OF WRITTEN SUBMISSIONS. HOWEVER, SINCE THE REVE NUE SOUGHT LIBERTY TO FILE WRITTEN SUBMISSION IN THE MATTER TH E HONBLE BENCH ALSO DIRECTED THE ASSESSEE TO DO THE SAME. IN THE WRITTE N SUBMISSIONS FILED BY THE ASSESSEE IT HAS ONLY SUMMARIZED THE SU BMISSIONS MADE BEFORE THE TRIBUNAL IN THE COURSE OF HEARING ON 02. 03.2010. THERE IS NO NEW POINT RAISED BY THE ASSESSEE IN THE SAID WRI TTEN SUBMISSIONS. THEREFORE THE DR CANNOT BE HEARD TO SAY THAT H COUL D NOT HAVE PREPARED HIS WRITTEN SUBMISSIONS TILL HE ASSESSEE H AD FILED THEIRS. F) WITH REGARD TO THE COMPLAINT OF THE DR THAT IN THE COURSE OF HEARING ON 02.03.2010 NO ARGUMENTS WERE ALLOWED BY THE HON BLE BENCH ON MERITS IN RESPECT OF THE GROUNDS OF APPEAL RAISED B Y THE REVENUE WHICH WAS THE SUBJECT MATTER OF APPEAL, IT WAS SUBM ITTED THAT SINCE THE TRIBUNAL HAD HEARD BOTH THE PARTIES ON THE PREL IMINARY ISSUE MA NO.240/MUM/10 11 WHICH CHALLENGED THE VERY VALIDITY OF THE ASSESSMEN T FRAMED THERE WAS NO NEED TO HEAR THE REVENUE ON THE MERITS OF TH E ADDITIONS/DISALLOWANCES AS THE SAME WOULD BE ACADE MIC AND OF NO CONSEQUENCE. G) IT WAS ALSO SUBMITTED THAT THE DR HAS ALSO ERRED IN OBSERVING THAT THE TRIBUNAL COULD NOT HAVE DECIDED THE ISSUE WITHO UT CONSULTING THE ASSESSMENT RECORDS OR OBTAINING WRITTEN SUBMISSIONS FROM THE DEPARTMENT. IN THIS REGARD IT WAS POINTED OUT THAT THE LETTER DATED 25.06.2009 FROM THE AO TO THE DR TO THE EFFECT THAT THE ONLY NOTICE ISSUED UNDER SECTION 143(2) WAS DATED 15.10.2001 PR OVES BEYOND DOUBT THAT NO FURTHER FACTUAL VERIFICATION WAS REQU IRED IN THE MATTER. 15. AT THE TIME OF HEARING OF THE M.A. THE LR.D.R . MR.SONGATE, REITERATED THE STAND OF THE REVENUE AS REFLECTED IN THE LETTERS OF THE D.R. REFERRED TO EARLIER. AFTER THE HEARING OF THE MATTER, THE LD. D.R., SHRI AJIT KUMAR SINHA, FILED THE FOLLOWING LETTER DATED 05-07-2010 WHICH IS EXTRACTE D BELOW FOR READY REFERENCE: FROM, DATED....5/7/10. AJIT KUMAR SINHA CIT (DR), C BENCH, ITAT, MUMBAI. TO, THE HONBLE MEMBERS G BENCH INCOME TAX APPELLATE TRIBUNAL MUMBAI. SIRS, SUB: WRITTEN SUBMISSIONS IN THE CASE OF SIMONI GEMS, IN ITA(SS) 747/M/03 CASE HEARD ON 02/03/2010-MA 240/M/10 REGARDING. ---------------------------------------- -- YOUR KIND REFERENCE IS INVITED TO MY LETTERS DATED 24/04/2010 AND 25/04/2010 THROUGH WHICH I HAD REQUESTED THE HONBL E BENCH TO CONSIDER THE WRITTEN SUBMISSIONS PREPARED BY ME ON BEHALF OF THE DEPARTMENT, WHILE ADJUDICATING THE DEPARTMENTS APP EAL IN ABOVE IT MA NO.240/MUM/10 12 (SS) 747/M/03. THE HONBLE BENCH HAS BEEN VERY KIND TO CONSIDER MY REQUEST AS IT HAS BEEN CONVERTED INTO AN MA. 2. IN THIS REGARD IT IS HUMBLY CLARIFIED THAT, ON M Y PART, THERE NEVER WAS ANY INTENTION TO HURT THE SENTIMENTS OF HONBLE MEMBERS WHILE MAKING THE SAID REQUEST. THE ONLY PURPOSE WAS TO MA KE A STRONG REQUEST TO THE HONBLE BENCH SO THAT THE WRITTEN SU BMISSIONS ARE CONSIDERED BY THE BENCH. IN THIS PROCESS, HOWEVER, I HAVE CAUSED INADVERTENT HURT TO THE SENTIMENTS OF HONBLE MEMBE RS; I HEREBY APOLOGISE FOR THE SAME. I MAY ALSO ADD THAT I HEREB Y WITHDRAW ANY SUCH STATEMENTS CONTAINED IN THE ABOVE TWO LETTERS WHICH MAY HAVE CAUSED THE SAID HURT TO THE HONBLE MEMBERS. YOURS FAITHFULLY, SD/- (AJIT KUMAR SINHA) CIT (D), C BENCH INCOME-TAX APPELLATE TRIBUNAL MUMBAI. 16. SHRI AJIT KUMAR SINHA HAD, HOWEVER, NOT APPEARE D BEFORE THE BENCH ON ANY OF THE OCCASIONS WHEN THE MATTER WAS POSTED FOR HEARING. EACH TIME, WHEN THE MATTER CAME UP FOR HEARING, SOME OTHER DEP ARTMENTAL REPRESENTATIVE APPEARED AND STATED THAT ALL THE SUB MISSIONS AND LETTERS HAVE TO BE CONSIDERED BY THE TRIBUNAL AND APPROPRIATE OR DERS PASSED. HENCE, WE ARE COMPELLED TO PASS ORDER ON MERITS. 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. WE HAVE SPECIFICALLY CONSIDERED THE WRITTEN SUBMISSIONS DT.19.3.2010 FILED BY THE DEPARTMENTAL REPRESENTATIVE ALONGWITH THE LETTER DATED 24-03- 2010 AND THE LETTER DT.25-03-2010. WE HAVE ALSO CON SIDERED THE DETAILED REJOINDER GIVEN BY THE ASSESSEE DATED 01-06-2010. 18. BEFORE WE PROCEED TO DEAL WITH THE PETITIONS, WE SHALL FIRST BRING OUT THE FACTS. THIS IS NECESSARY AS THE DEPARTMENTAL REPRES ENTATIVE MR.AJIT KUMAR MA NO.240/MUM/10 13 SINHA HAS MADE FRIVOLOUS ASSERTIONS. THE HEARING OF THE CASE HAD TAKEN PLACE ON 02-03-2010. THE LEARNED COUNSEL FOR THE ASSESSEE MADE SUBMISSIONS ON THE ISSUE OF INVALIDITY OF ASSESSMENT ON THE GROUND OF NON-SERVICE OF NOTICE U/S.143(2) OF THE ACT WITHIN THE PRESCRIBED TIME. THE LD. D.R. APART FROM MAKING ORAL SUBMISSIONS ALSO WANTED TO FILE WRITTEN SUBMISSIONS. BOTH PARTIES WERE GIVEN LIBERTY TO FILE WRITTEN SUBMISSI ONS ON THE PRELIMINARY ISSUE ONLY. AT THE REQUEST OF THE D.R., ONE WEEKS TIME W AS GRANTED FOR FILING WRITTEN SUBMISSIONS. THE ASSESSEE FILES WRITTEN SUBMISSIONS DATED 4.3.2010 ON 08- 03-2010. THE DR ALSO RECEIVED A COPY OF THE SAID WR ITTEN SUBMISSIONS ON 09- 03-2010. HE SHOULD HAVE FILED HIS WRITTEN SUBMISSIO NS BY 9.3.2010 OR AFTER RECEIVING THE SUBMISSIONS OF THE ASSESSEE, LATEST B Y 15/16-03-2010. THE TRIBUNAL WAITED FOR ONE MORE WEEK AND ONLY ON 23-03 -2010 DISPOSED OF THE APPEAL IN THE ABSENCE OF RECEIPT OF ANY WRITTEN SUB MISSIONS FROM THE REVENUE, AS THE FILE WAS SELF-CONTAINED AND IN THE OPINION OF THE BENCH, NO FURTHER MATERIAL WAS REQUIRED TO DECIDE THE PRELIMN ARY ISSUE. THE FACTS AVAILABLE ON RECORD AMPLY DEMONSTRATE THAT NOTICE U /S.143(2) IN THIS CASE WAS NOT ISSUED WITHIN 12 MONTHS FROM THE DATE OF FI LING OF THE BLOCK RETURN OF INCOME. THIS POSITION IS ADMITTED IN WRITING BY THE ASSESSING OFFICER. THE CORRESPONDENCE BETWEEN THE D.R. AND THE AO IS BROUG HT OUT IN THE IMPUGNED TRIBUNAL ORDER DATED 23-03-2010. ON THIS FACTUAL PO SITION, THE STATEMENT OF THE D.R. IN THE LAST LINE OF PARA 2 OF PETITION DAT ED 24-03-2010 IS CONTRARY TO FACTS. IT IS TOTALLY WRONG TO STATE THAT THE BENCH HAD NOT FIXED ANY TIME LIMIT FOR SUBMISSION OF WRITTEN SUBMISSIONS. IN FACT, AT PARA 6 ON PAGE 3 OF THE TRIBUNAL ORDER, THE DIRECTION OF THE BENCH THAT WRI TTEN SUBMISSION SHOULD BE FILED WITHIN ONE WEEK IS RECORDED. MA NO.240/MUM/10 14 19. AT PARA 3 OF THIS PETITION, THE D.R. HAS STAT ED THAT THE BENCH HAD PASSED THE ORDER IN UNDUE HURRY. MORE THAN 20 DAYS HAD ELAPSED FROM THE DATE OF HEARING AND THE BENCH WAITED FOR ABOUT 3 WE EKS FOR THE DEPARTMENT TO FILE WRITTEN SUBMISSIONS, THOUGH ONLY ONE WEEK W AS GRANTED AT THE TIME OF HEARING. THE LEARNED CIT(A)/D.R. PROBABLY EXPECTS THE BENCH TO ENQUIRE FROM HIM AS TO WHETHER WRITTEN SUBMISSIONS ARE READ Y AND WHEN THE SAME WILL BE FILED AND THEREAFTER PROCEED TO DECIDE THE APPEAL. THE CORRESPONDENCE OF THE ASSESSING OFFICER WAS ON THE FILE AND IN THE LIGHT OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOO N (SUPRA), THERE WAS NO OTHER VIEW POSSIBLE THAN TO UPHOLD THE PLEA OF THE ASSESSEE. STILL THE BENCH WAITED FOR WRITTEN SUBMISSION FROM THE LEARNED DEPA RTMENTAL REPRESENTATIVE / D.R. FOR A REASONABLE PERIOD. THERE WAS NO UNDUE HURRY. SIMILARLY, AT PARA 4 OF THE LETTER, THE ASSERTION THAT NO TIME LI MIT WAS PRESCRIBED, IS FACTUALLY INCORRECT. THE LEARNED DEPARTMENTAL REPRE SENTATIVE SHOULD HAVE REFRAINED FROM MAKING SUCH FRIVOLOUS AND UNTRUE STA TEMENT. IT IS ALSO INCORRECT ON THE PART OF THE D.R. TO STATE THAT THE DEPARTMENT HAD NOT BEEN GIVEN ANY OPPORTUNITY TO PRESENT ITS ARGUMENTS. IN FACT, THE D.R. HAD VERBALLY ARGUED REVENUES CASE AND OPPOSED THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. IT IS THEREFORE NOT CORRECT ON THE PA RT OF THE D.R. TO ALLEGE THAT THE TRIBUNAL HAS PASSED AN EX-PARTE ORDER . 20. IN THE LAST PARA OF THE LETTER DATED 24-03-201 0, THE D.R. HAS ALLEGED THAT HE COULD NOT HAVE PREPARED HIS SUBMISSIONS IN RESPE CT OF THE ISSUE RAISED BY THE ASSESSEE WITHOUT KNOWING THE ISSUE AND THE CORR ESPONDING ARGUMENTS OF MA NO.240/MUM/10 15 THE ASSESSEE. THIS IS A FALSE STATEMENT. THE LEARNE D COUNSEL FOR THE ASSESSEE HAS ARGUED HIS CASE BY INVOKING RULE 27 OF THE ITAT RULES. THE LEARNED DEPARTMENTAL REPRESENTATIVE CANNOT PLEAD IGNORANCE OF THE SAID RULES. IT IS UNFORTUNATE THAT THE LEARNED DEPARTMENTAL REPRESENT ATIVE CLAIMS IGNORANCE OF THE ISSUE RAISED BY THE ASSESSEE, WHEN THE CORRE SPONDENCE AVAILABLE IN HIS FILE WOULD CLEARLY SHOW THAT THIS ISSUE WAS ALREADY RAISED BY THE ASSESSEE ON A NUMBER OF EARLIER OCCASIONS WHEN THE MATTER CAME UP BEFORE THE BENCH. BEING A VERY IMPORTANT PRELIMINARY ISSUE THE TRIBUN AL WAS BOUND TO CONSIDER IT. THE DR WAS VERY MUCH PRESENT IN COURT AND WAS AWARE OF THE STAND OF THE ASSESSEE AND CASE LAWS RELIED UPON BY THE LD. C OUNSEL FOR THE ASSESSEE. HE HAD ALSO OPPOSED THE CONTENTION ON THE DATE OF H EARING. NOTHING PREVENTED HIM FROM MAKING HIS SUBMISSIONS WITHIN A REASONABLE TIME. THE CASE LAWS CITED WERE ALSO READ OUT IN THE COURT BY THE SR. ADVOCATE DURING THE COURSE OF HEARING. COPIES OF REPORTED DECISIONS ARE NOT, AS A MATTER OF CONVENTION, GIVEN TO THE OTHER SIDE. 21. IN THE LETTER DATED 25-03-2010, WHICH IS IN CO NTINUATION OF THE LETTER DATED 24-03-2010, THE DR STATES THAT THE ORDER OF T HE TRIBUNAL WOULD BE AN EX PARTE ORDER. THE DR HAS NOT UNDERSTOOD WHAT IS A N EX PARTE ORDER. WHEN THE LEARNED DEPARTMENTAL REPRESENTATIVE IS HEARD AN D ALSO GIVEN TIME TO FILE WRITTEN SUBMISSIONS, HOW CAN THE ORDER BE AN EX-PAR TE. THE D.R AGAIN REFERS TO THE TIME LIMIT FOR GIVING WRITTEN SUBMISSIONS AS WELL AS HIS VIEW THAT THE ASSESSEE HAS RAISED A NEW ISSUE. HERE, WE FIND THAT THE D.R. IS MISLEADING AND MAKING FALSE STATEMENT BEFORE THE BENCH ON THE FACTS OF THE CASE. THE ASSESSEE HAS BEEN CONSISTENTLY RAISING THIS ISSUE U NDER RULE 27 IN ALL THE MA NO.240/MUM/10 16 EARLIER HEARINGS. AS PER THE RECORD BEFORE US, FOR THE FIRST TIME ON 12-05- 2009 THE ASSESSEE RAISED THE ISSUE BEFORE THE BENC H AND THEREAFTER ON 29- 06-2009, 18-08-2009 AND 20-10-2009, THE ASSSESSEE H AD REPEATED THE VERY SAME ARGUMENTS. THE DEPARTMENT SOUGHT TIME TO ANSWE R THIS ISSUE. THIS ASPECT IS CONFIRMED BY THE CORRESPONDENCE BETWEEN T HE THEN D.R. AND THE AO. THE REVENUE HAD SOUGHT ADJOURNMENTS ON THOSE OC CASIONS FOR VERIFYING RECORDS AND ALSO TO MEET THE ARGUMENTS AND THE BENC H GRANTED THE ADJOURNMENTS. THE PRESENT D.R., SHRI AJIT KUMAR SIN HA, SUPPRESSED THE CORRESPONDENCE BETWEEN THE D.R. AND THE AO ON THESE ASPECTS ON ALL THE EARLIER OCCASIONS AND SOUGHT TO MISLEAD THE BENCH A ND OBTAIN AN ORDER IN FAVOUR OF THE REVENUE BY MISREPRESENTATION. IT IS U NFAIR AND UNJUST FOR ANY PARTY APPEARING BEFORE THE BENCH, ESPECIALLY A RESP ONSIBLE SR. GOVT. OFFICER, IN TRYING TO OBTAIN AN ORDER OF THE BENCH IN SUCH A MANNER BY SUPPRESSING THE CORRESPONDENCE BETWEEN THE DR AND THE AO, WHERE IN THE FACT OF NON- SERVICE OF NOTICE U/S.143(2), IN ACCORDANCE WITH TH E PROVISIONS OF THE ACT, WAS ADMITTED BY THE AO. WHEN THE FATE OF THE APPEAL WAS STARING AT THE FACE OF THE LEARNED DEPARTMENTAL REPRESENTATIVE, HE SHOU LD NOT HAVE CAST ASPERSIONS ON THE BENCH BY MAKING FALSE REPRESENTAT ION. TILL DATE THE D.R. COULD NOT BRING ON RECORD ANY MATERIAL TO SHOW THAT NOTICE U/S.143(2) OF THE ACT WAS SERVED ON THE ASSESSEE WITHIN THE TIME CONT EMPLATED UNDER THE ACT. 22. AT PARA-3 OF THE LETTER DATED 25.3.2010, STATEM ENTS HAVE BEEN MADE BY THE DR SHRI AJIT KUMAR SINHA BY NOT REFERRING TO TH E CONCLUSIVE CORRESPONDENCE BETWEEN HE D.R.S OFFICE AND THE AO. HE FALSELY CLAIMS THAT THE DEPARTMENT HAS IN NO WAY ACCEPTED THAT NOTICE U NDER SECTION 143(2) WAS MA NO.240/MUM/10 17 NOT ISSUED WITHIN THE PRESCRIBED TIME LIMIT AND THA T THERE IS A TYPOGRAPHICAL MISTAKE IN THE ASSESSMENT ORDER. UNNECESSARY AND IN SINUATING COMMENTS ARE MADE ON THE BENCH THAT DECISION CANNOT BE MAD E WITHOUT CONSULTATION OF RECORDS. HIGH SOUNDING STATEMENTS SUCH AS IT IS ALSO AGAINST ANY OF THE LEGAL PRECEDENTS EVER HEARD OF ETC. WERE MADE. THI S ONLY SHOWS THE LACK OF UNDERSTANDING OF THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND HIS ATTITUDE NOT TO BRING A TRUTH BEFORE THE BENCH. 23. WITH REGARD TO THE STATEMENT OF THE D.R. THAT T HE BENCH ALLOWED THE RESPONDENT TO SPEAK FIRST, THOUGH IT IS THE REVENUE S APPEAL, WE DO NOT FIND ANYTHING WRONG WITH SUCH PROCEDURE. THE COUNSEL FO R THE ASSESSEE RAISED A PRELIMINARY OBJECTION AT THE START OF THE HEARING B Y INVOKING RULE 27 OF THE ITAT RULES AND WHEN THE ISSUE SO RAISED GOES TO T HE VERY JURISDICTION OF THE AO TO MAKE ASSESSMENT, THE SAME HAS TO BE GONE INTO AT THE OUTSET. WHEN SUCH ISSUES ARE RAISED, THE BENCH IS DUTY BOUND TO HEAR THE SAME AND IT IS UNFORTUNATE THAT THE D.R. DOES NOT UNDERSTAND SUCH BASIC PRACTICE IN PROCEEDINGS BEFORE TRIBUNAL. THE JURISDICTIONAL ISS UE HAVE TO BE ADDRESSED FIRST AND THEN ONLY MERITS. THE LEARNED DEPARTMENTA L REPRESENTATIVE WANTS THE BENCH TO HEAR HIM ON MERITS, THOUGH FROM THE RE CORD, IT IS OBVIOUS THAT THE ASSESSMENT IS BAD IN LAW AS THE ASSESSING OFFIC ER DID NOT FOLLOW THE MANDATE LAID DOWN IN SEC.143(2) OF THE ACT. 24. WE NOW DEAL WITH THE WRITTEN SUBMISSIONS DATED 19.3.2010 FILED ALONG WITH THE LETTER DATED 24.3.2010 WHEREIN THE D.R. HA S AGAIN SUPPRESSED FACTS AND ATTEMPTED TO MISLEAD THE BENCH. MA NO.240/MUM/10 18 25. THE D.R. IN PARA-2 OF HIS WRITTEN SUBMISSION A GAIN SOUGHT TO SUBMIT THAT PLEA WITH REGARD TO THE VALIDITY OF THE ORDER OF ASSESSMENT ON THE GROUND THAT THE NOTICE U/S.143(2) WAS ISSUED BEYOND THE PE RIOD OF ONE YEAR FROM THE END OF THE MONTH IN WHICH THE RETURN OF INCOME WAS FILED BY THE ASSESSEE, WAS A NEW PLEA RAISED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE TRIBUNAL ONLY IN MAY, 2009. WE HAVE ALREADY SEEN THAT THIS ALLEGATION IS ABSOLUTELY FALSE. IN THE APPEAL FILED BEFORE CIT(A) AGAINST T HE ORDER OF ASSESSMENT, THE ASSESSEE RAISED GROUND NO.1 AND 2, WHICH READS AS F OLLOWS: (1) THE ASSESSING OFFICER ERRED IN PASSING THE IM PUGNED ORDER DATED 31.01.2002 UNDER SECTION 158BC OF THE ACT AND IN DE TERMINING THE TOTAL UNDISCLOSED INCOME FOR THE BLOCK PERIOD AT RS .4,71,57,325/-. HE OUGHT TO HAVE ACCEPTED THE BLOCK RETURN FILED BY TH E APPELLANT WITHOUT MAKING ANY ADJUSTMENTS THERETO. (2) THE ASSESSING OFFICER FAILED TO APPRECIATE THA T HE HAD NO JURISDICTION TO PASS THE IMPUGNED ASSESSMENT ORDER AS A VALID NOTICE COMPLY WITH THE CONDITIONS OF SEC.158BC OF THE ACT HAD NOT BEEN ISSUED TO THE APPELLANT. HE FAILED TO APPRECIATE T HAT NON-COMPLIANCE WITH THE STATUTORY REQUIREMENTS IN ISSUING THE SAID NOTICE HAD RESULTED IN THE ASSESSMENT PROCEEDINGS BEING NULL AND VOID. 26. IN PARA-3 OF THE ORDER OF THE CIT(A), THE ABOV E GROUNDS OF APPEAL HAVE BEEN DEALT WITH BY HIM AS FOLLOWS: 3. THE APPELLANT HAS CONTENDED THAT THE A.O. ERRE D IN PASSING THE ASSESSMENT ORDER CONSEQUENT UPON THE PROCEDURE INIT IATED BY THE ISSUE OF AN INVALID NOTICE, RESULTING THE ASSESSMEN T BEING AB INITIO VOID. THE APPELLANT HAS REFERRED TO TWO ALLAHABAD TRIBUNALS CASES IN SUPPORT OF THE CONTENTIONS. IT IS CLAIMED THAT THE NOTICE U/S.158BC ISSUED TO THE APPELLANT DID NOT INDICATE THE STATUS OF THE ASSESSE AND THE ASSESSMENT YEAR FALLING THE BLOCK PERIOD. IT I S FURTHER CLAIMED THAT THE NOCITE U/S.143(2) WAS RECEIVED BY THE APPELLANT BEYOND THE PERIOD OF ONE YEAR FROM THE DATE OF FILING THE RETURN, AND HENCE THE IMPUGED ASSESSMENT ORDER IS BARRED BY LIMITATION. THE APPE LLANT HAS SUBMITTED A DETAILED DISCUSSION ON THE GROUNDS FOR COMING TO SUCH A CONCLUSION. 4. I HAVE CAREFULLY STUDIED THE CONTENTION OF THE APPELLANT AND THE FACTS AS EMERGING FROM THE RECORDS. IT IS ADMITTED THAT THE APPELLANT DID NOT RAISE THESE OBJECTIONS THROUGHOUT THE COURS E OF ASSESSMENT PROCEEDINGS BEFORE THE A.O. AND COMPLIED WITH ALL N OTICES AND MA NO.240/MUM/10 19 CONSEQUENT PROCEDURES VOLUNTARILY. THAT BEING SO, THE PRESENT GROUND OF APPEAL BECOMES OF THE NATURE OF A MERE AFTER THO UGHT AND, WHATEVER BE THE MERIT OF THE CONTENTIONS, DESERVES TO BE REJ ECTED FOR THAT REASON ALONE. IT WAS HELD BY THE JURISDICTIONAL BOMBAY HI GH COURT IN THE CASE OF RAMESHCHANDRA & COMPANY VS. CIT (168 ITR 375) TH AT WHERE ADDITIONS ARE MADE ON THE BASIS OF THE ASSESSES OWN ADMISSION, THEY CANNOT BE QUESTIONED IN APPEAL. BY ANALOGY, WHERE THE APPELLANT HAS VOLUNTARILY COMPLIED WITH PROVISIONS AND PROCEDURES OF THE ACT WITHOUT ANY PROTEST, HE LOSES THE RIGHT TO TAKE UP THE ISSU E IN APPEAL. ACCORDINGLY, THIS GROUND OF APPEAL FAILS AND IS DIS MISSED. 27. IN THE LIGHT OF THE ABOVE ORDER OF THE CIT(A), IT IS NOT OPEN TO THE D.R. TO SUBMIT THAT THE ISSUE SOUGHT TO BE RAISED BY THE AS SESSEE WAS A NEW ISSUE. IN PARA-2.4.3 & 2.4.4 OF THE WRITTEN SUBMISSION, TH E D.R. HAS SUBMITTED THAT THE GROUND REGARDING VALIDITY OF THE ORDER OF ASSES SMENT ON THE GROUND THAT THE NOTICE U/S.143(2) WAS ISSUED BEYOND THE PERIOD OF ONE YEAR FROM THE END OF THE MONTH IN WHICH THE RETURN OF INCOME WAS FILE D BY THE ASSESSEE WAS NOT RAISED BY THE ASSESSEE BEFORE CIT(A). IN OUR OPINI ON, GROUND NO.1 RAISED BY THE ASSESSEE BEFORE CIT(A) WAS BROAD ENOUGH TO ENCO MPASS THE OBJECTION REGARDING VALIDITY OF THE ORDER OF ASSESSMENT ON TH E GROUND THAT THE NOTICE U/S.143(2) WAS ISSUED BEYOND THE PERIOD OF ONE YEAR FROM THE END OF THE MONTH IN WHICH THE RETURN OF INCOME WAS FILED BY TH E ASSESSEE. EVEN ASSUMING THAT THERE WAS NO SPECIFIC GROUND RAISED B Y THE ASSESSEE IN THIS REGARD, THE POWERS OF THE CIT(A) IN DISPOSING OF TH E APPEAL BEFORE HIM ARE NOT RESTRICTED TO THE GROUNDS RAISED BY THE ASSESSEE BE FORE HIM. EXPLANATION TO SEC.251 OF THE ACT IS CLEAR IN THIS REGARD AND IT R EADS AS FOLLOWS: EXPLANATION.--IN DISPOSING OF AN APPEAL, THE COMMI SSIONER (APPEALS) MAY CONSIDER AND DECIDE ANY MATTER ARISING OUT OF T HE PROCEEDINGS IN WHICH THE ORDER APPEALED AGAINST WAS PASSED, NOTWIT HSTANDING THAT SUCH MATTER WAS NOT RAISED BEFORE THE COMMISSIONER (APPEALS) BY THE APPELLANT. 28. THE CIT(A) HAS CONSIDERED THE ISSUE AND HAS HE LD AGAINST THE ASSESSEE. IT CANNOT THEREFORE BE SAID THAT THE ISSUE IN QUEST ION WAS A NEW ISSUE RAISED BY THE ASSESSEE FOR THE FIRST TIME BEFORE TRIBUNAL. IT IS ALSO CLEAR FROM THE ORDER OF THE CIT(A) THAT HE HAD ALSO NOT DISPUTED T HE FACT THAT THE NOTICE MA NO.240/MUM/10 20 U/S.143(2) WAS ISSUED BEYOND THE PERIOD OF ONE YEAR FROM THE END OF THE MONTH IN WHICH THE RETURN OF INCOME WAS FILED BY TH E ASSESSEE. THE CIT(A) HAD ONLY PROCEED TO DECIDE THE ISSUE AGAINST THE AS SESSEE BY APPLYING THE PRINCIPLE OF ACQUIESCENCE BECAUSE HE HAS OBSERVED WHATEVER BE THE MERITS OF THE CONTENTIONS. 29. THE ALLEGATIONS MADE IN THE WRITTEN SUBMISSION S IN PARA 2.4.5, 2.4.6 AND 2.4.7 ARE ABSOLUTELY BASELESS ALLEGATIONS. THE D.R . STILL WANTS TO SAY THAT NOTICE U/S.143(2) OF THE ACT WAS ISSUED WITHIN THE PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN OF INCOME WAS FILED WHEN THE AO IN HIS LETTER ADDRESSED TO THE D.R. HAS STATED THAT NO THING IS ON HIS RECORD TO SHOW THAT THE NOTICE U/S.143(2) OF THE ACT WAS SERV ED WITHIN THE PERIOD REQUIRED IN LAW AND THAT THE DATE MENTIONED IN THE ORDER OF ASSESSMENT AS DATE OF SERVICE OF NOTICE U/S.143(2) OF THE ACT IS INCORRECT. FOR THE REASONS GIVEN IN THE EARLIER PARAGRAPHS THE QUESTIONS SOUGH T TO BE RAISED BY THE D.R. IN PARA 2.4.8 AND THE FURTHER SUBMISSIONS IN PARA 2 .4.9 ARE WITHOUT ANY MERIT. 30. THE SUBMISSIONS MADE IN PARA 2.5 OF THE WRITTE N SUBMISSION ARE ABSOLUTELY WITHOUT ANY MERIT. THE SUM AND SUBSTANC E OF THE ARGUMENT RAISED IN THAT PARAGRAPH IS THAT A NEW PLEA CANNOT BE RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL UNLESS FACTS NECESSARY FOR ADJUDICATION OF SUCH NEW PLEA ARE ALREADY ON RECORD. WE ARE OF THE VIEW THA T THE QUESTION WHETHER NOTICE U/S.143(2) OF THE ACT WAS SERVED WITHIN A PE RIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN OF INCOME WAS FILED BY THE ASSESSEE IS A MATTER OF RECORD. IN FACT, THE AO HIMSELF HAS ADMITTED THAT SUCH NOTICE WAS NOT SERVED WITHIN THE TIME ALLOWED IN LAW. THE ISSUE, AGAIN AT THE COST OF REPETITION, IS NOT A NEW ISSUE AS PRESUMED BY THE D .R. AS THE ISSUE HAS BEEN EXAMINED AND ADJUDICATED BY THE CIT(A). IT IS THE REFORE FUTILE ON THE PART OF THE D.R. TO MAKE SUBMISSIONS ON ERRONEOUS PRESUMPTI ONS AND ASSUMPTIONS. 31. THE D.R., IN OUR HUMBLE OPINION, WAS UNABLE TO UNDERSTAND THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF B.R. BAMASI V. MA NO.240/MUM/10 21 CIT (83 ITR 233). WHEN THE HONBLE COURT IN ITS ORD ER CLEARLY STATES THAT, THE ASSESSEES COUNSEL CAN RAISE AN ORAL ARGUMENT, THE D.R. WRONGLY HARPED ON THE POINT THAT NO WRITTEN GROUNDS HAVE BEEN TAKEN B Y THE ASSESSEE UNDER RULE 27. AS PER THE HON'BLE JURISDICTIONAL HIGH COU RT, NO WRITTEN APPLICATION IS REQUIRED TO BE FILED WHEN RULE 21 IS INVOLVED. I N THIS CASE, A SPECIFIC ARGUMENT ON THE ISSUE OF VALIDITY OF ASSESSMENT WAS RAISED BEFORE THE CIT(A) BY WAY OF GROUND NO. 1 & 2 AND THE LD. CIT(A) AT PA GES 3 & 4 OF HIS ORDER DEALT WITH THE ISSUE AND DISMISSED THE GROUNDS OF T HE ASSESSEE. THIS VERY GROUND OF JURISDICTION WAS RAISED BEFORE THE TRIBUN AL BY THE ASSESSEES COUNSEL BY INVOKING RULE 27 VERBALLY. THE LD. D.R., ON THE ONE HAND, STATES THAT THE ISSUE WAS FIRST RAISED IN MAY 2009 BY THE ASSESSEE AND ON THE OTHER HAND, CONTRADICTS HIMSELF AND STATES THAT IT IS A N EW ISSUE RAISED FOR THE FIRST TIME, FOR WHICH HE HAS NO NOTICE. THIS SHOWS THAT T HE WRITTEN SUBMISSIONS ARE FACTUALLY MISLEADING AND THAT THE FACTS HAVE BE EN SUPPRESSED. THIS IS DEPLORABLE. THE ISSUE WAS VERY MUCH THERE BEFORE TH E LEARNED CIT(A) AND THE LEARNED CIT(A) ADJUDICATED THE SAME AND THE REVENUE HAD SUFFICIENT NOTICE ON THE ISSUE BEFORE THE TRIBUNAL. 32. COMING TO THE DECISION IN THE CASE OF MANJI DAN A (60 ITR 582) (SC) RELIED UPON BY THE D.R., WE FIND THAT THE FACTS ARE ENTIRELY DIFFERENT AND IT IS NOT A CASE OF INVOKING RULE 27. IN THAT CASE, THE A SSESSEE HAD NEITHER RAISED THE ISSUE BEFORE THE AAC NOR BEFORE THE TRIBUNAL. I T WAS ONLY IN THE COURSE OF ARGUMENTS BEFORE THE TRIBUNAL THAT A GROUND WAS TAK EN. IT WAS AN ASSESSEES APPEAL AND THE FACTS WERE NOT ON RECORD. IN SUCH CI RCUMSTANCES, THE COURT HELD THAT THE ISSUE RAISED DID NECESSITATE ENQUIRY INTO FACTS WHICH HAD NOT MA NO.240/MUM/10 22 BEEN INVESTIGATED. SIMILARLY, IN THE CASE OF RAMES H CHANDRA & CO.[35 TAXMAN 153(BOM)/168 ITR 375], IT IS AN ASSESSEES A PPEAL WHEREIN AN ADDITIONAL GROUND HAD BEEN TAKEN AND THE COURT HEL D THAT IT WAS A CASE WHERE THE ASSESSEE CLAIMED THAT THE STATEMENT HAD B EEN WRONGLY RECORDED AND THE ASSESSEE MADE THE STATEMENT UNDER A MISTAK EN BELIEF ON FACT AND LAW. NO SUCH CIRCUMSTANCES EXIST IN THE PRESENT CAS E. IN THE CASE ON HAND, A PLEA HAD BEEN TAKEN BEFORE THE CIT(A) ON THE ISSUE OF JURISDICTION AND THE LD. CIT(A) HAD DEALT WITH THE SAME. UNDER THESE CIRCUMS TANCES, BOTH THESE DECISIONS DO NOT COME TO THE RESCUE OF THE REVENUE. IN FACT, THEY ONLY DEALT WITH A SITUATION WHERE AN ADDITIONAL GROUND HAD BEE N RAISED IN AN ASSESSEES APPEAL. 33. FURTHER, ON GOING THROUGH THE DETAILED WRITTEN SUBMISSIONS AND THEREAFTER THE PETITION MADE BY THE LD. D.R., WE AR E OF THE OPINION THAT THE LD. D.R. HAS NOT BOTHERED TO READ THE ORDER OF THE TRIB UNAL. THE LEAST AN OFFICER IS EXPECTED TO DO BEFORE FILING A MISCELLANEOUS PET ITION, IS THAT THE ORDER OF THE TRIBUNAL HAS TO BE READ. THE VARIOUS STATEMENTS MADE IN THE PETITION ARE TOTALLY AGAINST AND CONTRARY TO THE OBSERVATIONS AN D CONCLUSIONS IN THE ORDER. WHEN THE LD. SR. COUNSEL STATES THAT HE IS RELYING ON RULE 27 FOR THE LIMITED PURPOSE OF DISMISSAL OF THE REVENUES APPEAL AND NO T SEEKING ANY FURTHER RELIEF IN VIEW OF THE OBSERVATIONS OF THE JURISDICT IONAL HIGH COURT IN THE CASE OF B.R. BAMASI (SUPRA), THE D.R. WAS UNABLE TO UNDE RSTAND THIS SUBMISSION AND GOES ON TO WRITE THAT THE ACCEPTANCE OF THE ARG UMENT OF THE SR. COUNSEL WOULD RESULT IN CANCELLATION OF THE ASSESSMENT ITSE LF AND THE RETURN OF INCOME FILED BY THE ASSESSEE WILL BECOME NULLITY. THIS SUB MISSION IS CONTRARY TO THE MA NO.240/MUM/10 23 ORDER OF THE TRIBUNAL WHERE IT IS HELD THAT THE ORD ER OF THE ASSESSING OFFICER AS CONFIRMED BY THE LEARNED CIT(A), STANDS AND THE ONLY EFFECT OF INVOKING RULE 27, IS THE DISMISSAL OF THE REVENUE APPEAL. TH E ASSESSEE, IN FACT, GOT NO FURTHER RELIEF. WHEN IT IS NOT EVEN THE ARGUMENT OF THE ASSESSES COUNSEL, WE DO NOT KNOW FROM WHERE THE D.R. GATHERED SUCH AN IM PRESSION. IT IS UNFORTUNATE THAT SUCH UNTRUE STATEMENTS ARE MADE IN THESE WRITTEN SUBMISSIONS. 34. NOWHERE IN THE WRITTEN SUBMISSIONS NOR IN THE P ETITIONS DATED 24-03- 2010 AND 25-03-2010, THE D.R. ASSERTS THAT THE NOTI CE U/S.143(2) WAS SERVED WITHIN THE TIME LIMIT PROVIDED IN THE PROVISO TO SE C. 143(2). THIS IS THE POSITION TILL DATE. ON THE CONTRARY, THE FACTS BROU GHT OUT IN THE TRIBUNAL ORDER CLEARLY BRING OUT THE ADMISSION OF THE AO THAT THE NOTICE U/S.143(2) WAS NOT SERVED WITHIN THE TIME LIMIT OF 12 MONTHS. WE DO NO T UNDERSTAND AS TO WHAT THE LEARNED DEPARTMENTAL REPRESENTATIVE WANTED TO A CHIEVE BY SUCH SUBMISSIONS. 35. WE ARE OF THE VIEW THAT THE CONDUCT OF THE LEA RNED CIT(A) IN ADDRESSING CORRESPONDENCE TO THE HONBLE MEMBERS IN RESPECT OF AN APPEAL WHICH HAS BEEN HEARD AND UNDER CONSIDERATION FOR PASSING ORDE RS IS IMPROPER. IT IS AN ATTEMPT TO INTERFERE WITH THE DUE COURSE OF ANY JUD ICIAL PROCEEDING AND TENDS TO INTERFERE WITH OR OBSTRUCTS OR TENDS TO OBSTRUCT THE ADMINISTRATION OF JUSTICE AND AS SUCH WOULD BE CRIMINAL CONTEMPT' WI THIN THE MEANING OF THE CONTEMPT OF COURTS ACT, 1971. THE ALLEGATIONS MADE IN THE LETTERS DATED 23.3.2010 AND 24.3.2010 ARE SERIOUS ENOUGH TO WARRA NT AN ACTION SEEKING PROTECTION OF THE HONBLE HIGH COURT IN EXERCISE OF ITS POWERS TO PUNISH FOR CONTEMPT OF THE SUB-ORDINATE COURTS AND TRIBUNALS. IN OUR OPINION, THERE CANNOT BE A FITTER CASE FOR IMPOSITION OF EXEMPLARY COSTS ON THE LEARNED DEPARTMENTAL REPRESENTATIVE, WHO IN OUR VIEW, IS RE SPONSIBLE FOR SUCH A M.A. AND FOR WASTING THE TIME OF THE TRIBUNAL BY RAISIN G FRIVOLOUS ARGUMENTS AND MA NO.240/MUM/10 24 MAKING BLATANTLY FALSE SUBMISSIONS. THE COST SHOULD HAVE TO BE RECOVERED FROM THE SALARY OF THE DELINQUENT EMPLOYEE, WHO IS RESPONSIBLE FOR SUCH ACTIONS AND ENTRY MADE IN HIS SERVICE RECORD ON THE ADVERSE COMMENTS MADE AGAINST THE D.R. BY THE TRIBUNAL. WE HOWEVER REFRAI N FROM DOING SO IN THE HOPE THAT SUCH INDISCRETION WOULD NOT BE REPEATED I N FUTURE AND ALSO IN VIEW OF THE LETTER OF APOLOGY FILED BY THE D.R. WE FIND NO MERITS IN THE CASE SOUGHT TO BE PLEADED BY THE D.R. AND THEREFORE DISMISS THE MISCELLANEOUS APPLICATIONS. AS WE HAVE DECIDED THE ISSUE OF LIMI TATION AND JURISDICTION, WE DO NOT DEAL WITH THE SUBMISSIONS MADE ON MERITS AS IT WOULD BE AN ACADEMIC EXERCISE. 36. IN THE RESULT, THE MISC. APPLICATION BY THE REV ENUE STANDS DISMISSED. ORDER PRONOUNCED ON THE 30 TH DAY OF AUGUST 2011. SD/- SD/- (R.S. PADVEKAR) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30 TH AUGUST 2011. NG: COPY TO : 1. DEPARTMENT. 2.ASSESSEE. 3 CIT(A), CENT.III,,MUMBAI. 4 CIT,CENT.I, MUMBAI. 5.DR,G BENCH,MUMBAI. 6.MASTER FILE. (TRUE COPY) BY ORDER, ASST.REGISTRAR, ITAT, MUMBAI. MA NO.240/MUM/10 25 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 26.8.2011 SR.PS/ 2 DRAFT PLACED BEFORE AUTHOR 26.8.2011 SR.PS/ 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 26.8.2011 JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 26.8.2011 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 26.8.2011 SR.PS/ 6. KEPT FOR PRONOUNCEMENT ON 30.8.2011 SR.PS/ 7. FILE SENT TO THE BENCH CLERK 30.8.2011 SR.PS/ 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER